An important change is pending in the federal regulatory system, and you can make an impact.

There are an estimated ten to twelve million undocumented immigrants in the United States at this time. Among these, a large number are not eligible for a process called Adjustment of Status because they did not originally enter the United States with a visa, meaning that they cannot “fix their papers” without first leaving the United States. However, the law also states that any person who leaves the United States after being unlawfully present for more than one year will be punished with a ten-year bar of re-entry. The only way for this ten-year punishment to pass is with time or by securing approval of an I-601 waiver.

The I-601 waiver is available to certain aliens who can show that their U.S. citizen or Permanent Resident spouses or parents would suffer “extreme hardship” if the ten-year bar were not cancelled, meaning that the family would either spend ten years separated or that the family members would have to relocate to another country. The “extreme hardship” standard is high, and it requires suffering that is beyond what one would normally expect from these circumstances. Depending on personal circumstances, timing, and luck, families may have to apply for an I-601 waiver again and again, spending hundreds of dollars and facing processing times commonly between eight months and two years. The current system creates enormous heartache and suffering for families seeking legal status in this country.

In January, President Obama proposed to change this system. He cannot change the laws on his own, but his administration has proposed a change to this process. Currently, an applicant must file an I-130 petition, attend an immigrant visa appointment in the country of origin and receive the ten-year punishment, and then submit the waiver application. From the time of the visa appointment until the waiver is approved, the family of those applicants must either live apart from their loved ones or relocate temporarily to countries they have never known.

Under the proposed rule change, the second and third steps would be reversed. Applicants could file for pre-approval of a waiver from the United States and then, if it is approved, return briefly to the country of origin before coming home to the United States as permanent resident aliens. This change could make the process much more predictable, less painful, and more attractive to families. For many families where one person lacks lawful immigration status, the uncertainty of the current I-601 process is a barrier to pursuing legal status. If the pre-approval (or provisional) waiver process is approved, many families may pursue legal status by taking advantage of this new, more humane process.

This is great news, and we strongly support approval of Proposed Rule USCIS-2012-0003. However, the process is very narrow and it should be expanded.

Under the proposed rule, only immediate relatives of U.S. citizens would be eligible for provisional waivers. This means that only the spouses and unmarried, under-21 children of U.S. citizens would be able to apply for a waiver from the United States even though the law permits I-601 waivers for adult children of U.S. citizens and for the spouses, minor children, and adult children of Permanent Residents.

Additionally, the proposed rule has many arbitrary limitations. Only applicants with one and only one basis of inadmissibility would be eligible for a provisional waiver. Applicants with other inadmissibility issues such as immigration fraud or criminal convictions would not be eligible, even though waivers based on the same hardship standard are available for those forms of inadmissibility. There are also other waivers of inadmissibility that are easier to get, such as permission to re-apply for immigrants who were previously removed and a waiver of “alien smuggling” involving close family members. The proposed rule does not permit stateside consideration of these waivers, and it seems to prioritize streamlining over consistency within the law.

Further, the proposed rule cuts out those who are currently in deportation proceedings as well as those who already have their immigrant visa appointment scheduled. The immigration court system is grossly overcrowded, and the proposed rule ignores a possibility to relieve this congestion by allowing certain individuals to close their deportation cases and pursue a provisional waiver that would allow them to go abroad and return to the United States with legal status. Additionally, the proposed rule penalizes families that were proactive and scheduled their appointments abroad by denying them access to a process that could make the pursuit of legal status much less painful. This is unfair.

In order for this change to be approved, the government must see sufficient interest and support among the public. You can comment in favor of this change by going to http://www.regulations.gov/#!documentDetail;D=USCIS-2012-0003-0001. You can also submit comments via email or by postal mail. The deadline for comments is June 1, 2012.

We have prepared an extensive comment in support of the proposed rule and requesting that the process to be expanded to help people besides the immediate relatives of U.S. citizens. We would encourage you to echo our official comments by referencing comment USCIS-2012-0003-1704 in addition to including your own personal note. You can see our comment at http://www.regulations.gov/#!documentDetail;D=USCIS-2012-0003-1704.

Many of you know someone who has gone through this difficult process or who is undocumented and will need to apply for a waiver in the future. Some of you and your loved ones have already gone through this process and know how hard it is. In the spirit of solidarity, we would ask each of you to comment in support of this positive change. Please also pass on the word to anyone you know who may be supportive.

12 responses to “TAKE ACTION NOW – Stateside I-601 Waivers”

NOVEMBER 16, 2011 MY SPOUSE HAD HIS 1ST INTERVIEW IN CDJ, MEXICO THEN ON APRIL 16, 2012 HE TRUN IN HIS I-601 WITH ALL PAPER WORK OF HARDSHIP AND MY MEDICAL RECORD OF MY DIABETES IN LATE JUNE 2012 USCIS REQUESTED MORE INFORMATION FROM MY DOCTOR ON MY DIABETES THAT WAS TURN IN IN JULY 16, 2012 AND WE HAVE NOT HEAR ANYTHING HOW LONG WILL IT TAKE.

Just to clarify — this blog post was about a proposed new process. Because your husband has already gone to his appointment in CDJ he will not be able to utilize the I-601A pre-adjudication process.

To answer your question — it commonly takes between 6 and 10 months for a response to an I-601 RFE. If you submitted the additional evidence in July you might expect a response around January 2013. This is obviously a stressful situation and it is easy to lose hope. Your best option is to wait, hope for the best, and continue to gather evidence for use in a future I-601 application if needed. Most important of all you should not lose hope and arrange for your husband to return to the United States. If you choose to do so he will trigger another punishment of ten years for which there is no waiver available.

Good luck. You should contact a Catholic Charities or other CLINIC affiliate in your area if you need additional help.

What form type are you putting into “My Case Status” on the USCIS Web site? If you are entering the receipt notice for the I-130 it will be in “Post Decision Activity” because the I-130 has already been approved. Your husband’s case made it to the immigrant visa interview stage and now it is awaiting I-601 waiver approval.

Now, if you are putting in a case number specific to the I-601 and it is still showing “Post Decision Activity” this could be due to the quirks of the My Case Status system or it could indicate that the case is ready to move forward and something is wrong.

Again the best thing to do is to contact an AILA attorney or CLINIC affiliate in your area for specific advice.

Hi morning. my case is a i601 waiver voluntary deperature in feb 2012, case status is in post decision activity since june2012, what happens next is there a problem, how long do i have to wait for my interview, thanks.

We do our best not to offer legal advice by way of our blog, so we won’t address your question directly.

If your I-601 waiver is in post-decision activity that likely indicates that it has either been approved or denied. If it has been approved you would likely be able to schedule a new immigrant visa appointment with the U.S. consulate in your country. If your waiver application was denied you will likely have to apply again or wait until your particular inadmisibility/ies have lapsed.

Hi i am sorry to bother you but, i had my info mixed up. this was my last update.The NVC ask for my mailing address in my birth country and, the petition is now eligible for further processing.My question is do you have any info on the next step. I do appreciated any feedback. Thank you so much. This was on june22nd 2012.

If your I-130 is approved and a visa number is available you and the petitioner should be receiving instructions from the National Visa Center. If for some reason this information has not arrived you can call the NVC at 1-603-334-0700. They provide clear instructions on what the next steps are to submit the necessary documents and fees and to schedule an appointment at the U.S. consulate in your home country.

FOR THE USCIS CASE # START WITH WAC AND FOR CDJ MX IT START WITH CDJ THOSE ARE THE ONLY WAY I CAN CHECK I DON’T HAVE ANY REFERENECE # FOR THE NVC SO HOW WOULD I CHECK THAT AND WHEN I CHECK WITH US VISA MX I USED HIS PASSPORT # AND BIRTHDAY AND YEAR BORN AND COUNTRY MEXICO THIS HAS BEEN VERY DEPRESSING FOR ME HANDLING EVERYTHING ON MY OWN AT HOME IT BEEN 11 MONTHS NOW.AND NO VACATION TIME LEFG TO BE WITH MY HUSBAND.

The WAC number refers to your husband’s I-130, which is likely already approved. If he has a CDJ or MEX number that case number will be used both for the National Visa Center (1-603-334-0700) or for the U.S. consulate in Ciudad Juarez (1-703-439-2310). If your husband needs an I-601 waiver of inadmissiblity to be approved before he is allowed to come back you will have to submit that to the Chicago Lockbox if you have not done so already.